Proposed Rules Archives

• Proposed Changes to CrR 4.8 - Subpoenas (in Word Format)
• Comments Received for CrR 4.8 - Subpoenas

Suggested Amendment to Superior Court Criminal Rule (CrR) 4.8
concerning Subpoenas

Submitted by the Board of Governors of the Washington State Bar Association

Purpose: The Washington State Bar Association has suggested substantial amendments to CR 45 regarding subpoenas in civil actions. For this reason, existing CrR 4.8 (which currently provides “[s]ubpoenas shall be issued in the same manner as in civil actions”) requires contemporaneous amendment. In addition, prior to the decision of the Court of Appeals in State v. White, 126 Wn. App. 131, 107 P.3d 753 (2005), the practice for issuing subpoenas in criminal actions (particularly the issue of whether to give notice of issuance of a subpoena duces tecum) was not consistent throughout the state. The White case, which required compliance with CR 45 notice obligations for service of all subpoenas, underscored problems in engrafting civil procedures onto criminal cases.

The new suggested rule explicitly recognizes two types of subpoenas: (1) those directing a person to attend and give testimony (“a subpoena for testimony”) and (2) those requiring production of documentary evidence or tangible things (“a subpoena for production”). A subpoena for testimony compels a person to attend trial, a hearing, or a deposition. Provisions regarding form (subsection (a)(1)), service (subsection (a)(3)), and “when excused” (subsection (a)(4)) are consistent with existing practice. Under subsection (a)(1), a subpoena may be issued by the court or by an attorney of record. Under subsection (a)(3), service on a person directed to testify is accomplished by personal service, abode service, or mail (provided that a waiver form is filed in case of service by mail). Proof of service or a waiver of service can be evidenced by affidavit or declaration. The waiver provision is intended as an alternative means of service that will facilitate cost-effective service. Under subsection (a)(4), a person is excused from further testimony after his or her examination, unless otherwise ordered by the court. This subsection is identical to existing CR 45(g) and suggested CR 45(f)(2).

The notice provision in subsection (a)(2) is new and represents a compromise between the positions articulated by prosecutors and defense lawyers. In general, prosecutors favor a rule that requires each party to provide notice to the adverse party whenever a subpoena is issued (as required by CR 45 and the White decision), and defense lawyers prefer not to provide such notice. Unlike civil practice, where discovery obligations of all parties generally correspond, procedural and ethical requirements in criminal cases are such that disclosure obligations differ for the prosecution and the defense. In particular, the obligation of a defense lawyer not to act in such a way as to incriminate his or her client creates unique problems, underscoring the need for a carefully crafted subpoena rule. Thus, under subsection (a)(2) of the suggested amendment, notice to all parties is not required for issuance of a subpoena for testimony, unless it is accompanied by a subpoena for production (in which case notice is required pursuant to subsection (b)(2)(iii)), or unless notice is required elsewhere in the Criminal Rules. Notice of the time and place for taking a court-ordered deposition in a criminal case is separately required by CrR 4.6(b).

The new suggested rule sets forth specific requirements that apply only to a subpoena for production, i.e., a subpoena requiring that the recipient produce books, papers, documents, or tangible things. (Unlike the proposed amendment to CR 45, CrR 4.8(b) does not include a provision to permit inspection of premises because it is not necessary or appropriate to do so in criminal matters; if unique circumstances require inspection of premises, the issue can be addressed by the court, as it is at present, under CrR 4.7.) The form of the subpoena for production is similar to a subpoena for testimony, except that it must include the text of subsection (b)(4) advising the recipient of the availability of a motion to quash in the enumerated circumstances.

Just as in subsection (a)(2), notice provisions in subsection (b)(2) represent a compromise between prosecutors and defense attorneys. This subsection provides that advance notice of a subpoena for production is required whenever a subpoena seeks documentary evidence or tangible things belonging or pertaining to a defendant, an alleged victim or complaining witness, or a member of an alleged victim’s family or household. This advance notice must occur at least 5 days before service of the subpoena for production upon the subpoena recipient, although the parties may agree to, or the court may order, a shorter time. Subsection (a)(2)(ii) provides an exception for a defense attorney seeking records pertaining solely to the defendant. Thus, by subpoena a defense attorney can acquire school, medical, telephone, and other records relating to his or her client without notice to the prosecution and without risking disclosure of potentially inculpatory information. A second and independent means of foregoing the notice requirement is by ex parte motion. Under compelling circumstances, a court may order that notice of the subpoena for production (issued either by the prosecution or the defense) is not required. This would allow, for example, a prosecutor to obtain records relating to a victim without disclosure to a defendant or defense counsel.

Service requirements for a subpoena for production depend upon whether the subpoena also directs the person to attend and give testimony. A subpoena that both requires attendance and production must be served on the witness pursuant to subsection (a)(3). Service of a subpoena for production only is accomplished pursuant to CR 5(b).

The suggested amendments to CR 45 incorporate provisions designed for the protection of persons subject to subpoenas. These provisions are in substantial part identical to those of Fed. R. Civ. P. 45(c). The text in subsection (b)(4) of suggested CrR 4.8 synthesizes these provisions for application in criminal cases and provides a mechanism to seek court protection upon timely motion.

Section (c) is identical to paragraph (f) of existing CR 45 (which will become paragraph (g) in the suggested amendment to CR 45).